Opinion
A157939 A157613
04-02-2020
In re KATHERINE F., A Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MARIA F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD-03044-01)
These consolidated appeals pertain to a dependency case filed on behalf Katherine F. when she was less than a year old. In a related appeal filed by Katherine's father, William G., we have affirmed a January 2019 disposition order removing Katherine from parental custody due to domestic violence. (Case A156433.) Here, we address appeals filed by Katherine's mother, Maria F., who challenges (1) an April 2019 interim review order placing Katherine in Maria's home but continuing the dependency, and (2) a July 2019 order dismissing Katherine's dependency case. Maria contends these orders must be reversed because the juvenile court erred by failing to terminate Katherine's dependency at the April 2019 review hearing. Because we cannot provide Maria any effective relief from this alleged error, we will dismiss her appeals as moot.
FACTUAL AND PROCEDURAL HISTORY
I. Background
In April 2018, the Alameda County Social Services Agency received a referral that three-month-old Katherine was at risk of harm from domestic violence in her home. In May 2018, Katherine's parents, Maria and William, agreed to a safety plan requiring them to have no contact with each other and affording them social services. But they violated the safety plan and had at least one subsequent argument that involved physical violence.
In August 2018, the Agency filed a petition alleging dependency jurisdiction over Katherine based on her parents' failure to protect her from harm (Welf. & Inst. Code § 300, subd. (b)(1)) and William's failure to provide for her support (§ 300, subd. (g)). The failure to protect allegation was based on the April 2018 domestic violence incident, violations of the May 2018 safety plan, another domestic violence incident in July 2018, and William's arrest history. The failure to provide support allegation was based on the fact that William had been incarcerated since July 2018.
Statutory references are to the Welfare and Institutions Code, unless another statute is cited.
A contested jurisdiction and disposition hearing was held over three court sessions between November 2018 and January 2019. The Agency presented evidence that the parents' domestically violent relationship was more dangerous than its initial investigation suggested. Maria was participating in services, but the Agency was concerned that she could not set limits with William and the two would get back together. William was released from jail in October, and in November the court issued a restraining order precluding him from having contact with Maria or Katherine except for weekly supervised visits with Katherine.
When the contested hearing was finally completed on January 29, 2019, the Agency maintained that the petition allegations had been proven and urged the court to exercise jurisdiction and continue Katherine's out-of-home placement. County counsel acknowledged, however, that the parents were making progress, so counsel proposed that the court hold another hearing in 90 days to consider placing Katherine in Maria's home. Maria requested that Katherine be returned to her immediately and William supported that request.
The juvenile court exercised jurisdiction over Katherine under section 300, subdivision (b)(1) based on the risk of harm from her parents' domestic violence. It found that the parents had made partial progress toward alleviating the problems requiring the dependency, but an out-of-home placement remained appropriate and necessary. The Agency was granted discretion to proceed to unsupervised visits for Maria and to arrange visits for William that would be consistent with the best interests of Katherine. The court also scheduled an interim review hearing for April 3, 2019, to consider returning Katherine to Maria's care with "a different type of safety plan." The six-month review was set for July 8, 2019.
II. The Interim Reviews
On April 2, 2019, the Agency filed an interim review report recommending that (1) the dependency continue, and (2) the Agency be granted discretion to arrange for Katherine to have a trial home visit with Maria and to move toward unsupervised visits with William. According to the report, Maria agreed with these recommendations.
The Agency reported that both parents were actively participating in their case plans. But there were concerns about Maria's ability to apply what she had learned, and about tensions between Maria and her sister Rosa, who was Katherine's relative caregiver. Maria had been laid off work and had to move after her rent was raised. But she remained engaged in services and began having unsupervised visits with Katherine in late March. William was participating in domestic violence classes, drug testing, and had successful weekly supervised visits.
At the April 3 hearing, neither parent objected to the Agency recommendations, which were adopted by the court. Maria's trial visit was scheduled for April 15 to April 29, when the court would hold another review hearing. The court granted the Agency discretion to implement a transition plan for William's unsupervised visits.
Prior to the April 29 review hearing, the Agency filed an addendum report recommending that (1) the dependency continue, (2) physical custody of Katherine be returned to Maria with family maintenance services, and (3) William receive informal child welfare services. The Agency reported that both parents agreed with these recommendations.
According to the addendum report, the trial visit in Maria's home was going well and she remained engaged in services. Meanwhile, William had maintained his sobriety, was engaged in services and had positive visits with Katherine. Both parents had family support and were working with advocates. The Agency had held family meetings to develop a plan for William to begin unsupervised visits. The Agency still had concerns about Maria's ability to prioritize Katherine's safety, the parents' ability to co-parent while living separately, and the need to modify the restraining order so William could have unsupervised visits.
At the April 29 hearing, the court accepted the Agency reports into evidence and invited comments. Maria's counsel stated that she wanted the court to make the proposed orders and amend the restraining order to authorize unsupervised visits for William. William's counsel submitted on the reports and asked for guidance about how to modify the restraining order to authorize unsupervised visitation. The court responded that the Agency already had discretion to revise the visitation plan, but it was too early to modify the restraining order.
During this review hearing, Maria's counsel also asked the court to conduct an "evidentiary hearing for terminating jurisdiction" pursuant to a section 388 motion that she had filed three days before the hearing. In her motion, Maria requested termination of the dependency based on the following changed circumstances: Both parents had complied with their case plans; Katherine was doing fine living with Maria during the unsupervised trial visit; and Katherine would also be safe if she were alone with William.
The juvenile court declined to make any ruling on the section 388 motion because the court and other parties had not had the opportunity to review it. Nevertheless, near the end of the review hearing, the court took a break to look over the motion and then opined that Maria's change of circumstances claim was premature. As an example, it pointed out that Maria herself had indicated she wanted William to have unsupervised contact with Katherine, but William had not had the opportunity for unsupervised visits because Maria was in the middle of her trial visit with Katherine. The court also pointed out that if the dependency was dismissed immediately, before the restraining order was modified, then Maria could trigger another dependency petition if she were to let William spend time with Katherine.
After an off-the-record discussion, the court clarified that it was not prepared to make a ruling about whether to set Maria's section 388 motion for an evidentiary hearing. Instead, it scheduled another review hearing for May 30, to assess how unsupervised visits with William were working and to give the parents time to work out the details of a safe exchange plan for William's visits. In the meantime, the dependency was continued, the out-of-home placement order was set aside so Katherine could remain with Maria, and the Agency was ordered to provide family maintenance services to Maria and informal child welfare services to William.
At the May 30 review hearing, the Agency submitted an interim report describing a multi-phase visitation plan for William, beginning with observed visits, proceeding to community visits, and transitioning to unsupervised visits. The report also updated the court that both parents were utilizing and relying on support services and advocates. The court admitted the report into evidence, approved unsupervised visits for William and modified the restraining order accordingly.
III. The Six-Month Status Review and Dismissal Order
On July 8, 2019, the court held a six-month review hearing. The Agency submitted a report recommending that the court dismiss Katherine's dependency. It also recommended placing this family in the informal family maintenance program, so that the Agency could monitor the post-dismissal visitation plan and because Maria had requested permission to complete her domestic violence class. The court stated that it would follow the Agency recommendations and congratulated both parents for doing a "great job" and "working hard individually" to do what was best for their daughter. The hearing was continued until July 11 so custody and final exit orders could be prepared.
At the July 11 hearing, all parties submitted on the Agency recommendations. The court reviewed final custody and visitation orders, which gave physical and legal custody of Katherine to Maria and included a visitation plan for William that provided for unsupervised visits three times a week and authorized overnight visits so long as the parents did not have contact with each other. Maria's counsel thanked everyone for working together on the custody orders. The court found that the conditions justifying the initial assumption of jurisdiction no longer existed and would not likely exist if supervision was withdrawn. Jurisdiction was terminated, and the case was dismissed.
DISCUSSION
Maria contends that the April 29, 2019 order continuing Katherine's dependency is not supported by substantial evidence and, therefore, all orders from that day forward must be reversed. The Agency contends that Maria's appeals are moot because the dependency case has now been dismissed, and Maria has full custody of Katherine.
"As a general rule, it is a court's duty to decide ' " 'actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' [Citation.] An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief. [Citation.] Still, a court may exercise its inherent discretion to resolve an issue when there remain 'material questions for the court's determination' [citation], where a 'pending case poses an issue of broad public interest that is likely to recur' [citation], or where 'there is a likelihood of recurrence of the controversy between the same parties or others.' " (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)
Under these criteria, Maria's appeals are moot. Even if she could prove that the dependency should have been dismissed in April 2019, we cannot afford her effective relief for that alleged error because three months later the court did dismiss the dependency and, at that time, Maria was awarded full custody of Katherine. Further, the issue whether this case was maintained for three months longer than necessary is not of public interest or concern. Nor is there any possibility this factual controversy will recur.
Maria argues that this court can provide her effective relief because if Katherine's dependency is deemed to have been dismissed as of April 29, 2019, Maria will not be required to comply with the July 2019 exit order entitling William to have unsupervised visits with Katherine.
Maria forfeited her newfound objection to William's visitation order. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686; In re S.B. (2004) 32 Cal.4th 1287, 1293.) Not only did Maria fail to object to any visitation order pertaining to William, it appears that she supported all of them. Crucially, at the April 2019 hearing, Maria's counsel explicitly stated that "we have no objection to the visitation amendment, or the amendment to the restraining order" authorizing William to have unsupervised contact with Katherine.
In her reply brief, Maria concedes that she did not object to the custody and exit orders granting William unsupervised visitation. She argues, however, that the futility exception to the forfeiture rule applies. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 1001.) According to this theory, once the court denied Maria's request to terminate the dependency at the April 2019 hearing, it would have been pointless for her to object to William's visitation order. This argument is not consistent with the facts.
First, Maria did not actually request that the dependency be dismissed at the April 2019 hearing. Rather, the juvenile court agreed to discuss Maria's section 388 motion but declined to make any ruling on shortened time. Second, and in any event, an express premise of Maria's section 388 motion to terminate the dependency was that Katherine would be safe if she was alone with William. Thus, Maria's appellate argument that she is aggrieved by the exit order granting William unsupervised visits is not only forfeited, it is inconsistent with her ultimate claim that the dependency should have been dismissed in April rather than July 2019.
Even if Maria did not forfeit her objection to the visitation order, we would conclude these appeals are moot. First, Maria assumes without evidence that if the dependency was terminated in April rather than July William would have been denied unsupervised visits. Second, she also contends erroneously that the only reason this case was not dismissed earlier was to give William an opportunity to "rehabilitate" himself so he could have unsupervised visits. When the interim review hearing was held in April 2019, neither parent had yet demonstrated an ability to provide Katherine with a safe home since Maria was still in the middle of her trial visit. Third, Maria fails to explain how she was aggrieved by William's visitation order, which appears to be in the best interests of Katherine, and which did not prevent Maria from securing full custody of her daughter.
Maria relies on In re J.S. (2011) 199 Cal.App.4th 1291 (J.S.). That case involved a pregnant minor whose father was incarcerated when her mother was arrested for physically abusing her. (Id. at p. 1293.) After mother consented to jurisdiction for purposes of drug treatment, the minor was released to her care. Prior to disposition, mother consented to the marriage of minor and her boyfriend. All parties agreed that the dependency had to be dismissed due to lack of jurisdiction because the minor had been emancipated through marriage. (Id. at p. 1294.) However, the juvenile court denied the Agency's motion to dismiss, finding that it retained jurisdiction because the marriage was invalid. At disposition, the juvenile court denied a renewed request to dismiss the dependency, adjudged the minor a dependent, and denied services to her incarcerated father. The minor and her parents appealed. While that appeal was pending, the juvenile court dismissed the dependency with exit orders granting mother sole custody and denying visitation to father. (Ibid.) Father and the minor appealed the exit orders.
Preliminarily, the J.S. court found the appeals were not moot even though the dependency case had been dismissed. (J.S., supra, 199 Cal.App.4th at p. 1295.) Minor and father were aggrieved by the adverse custody and visitation orders, which were a "direct result" of the denial of the motion to dismiss the dependency, because all of these rulings depended on the juvenile court's determination that the minor had not been emancipated. (Ibid.) The J.S. court went on to find that the minor had been emancipated through marriage thus depriving the juvenile court of jurisdiction from that point forward. Accordingly, the judgment and exit orders were reversed and the juvenile court was directed to enter a new order dismissing the minor's dependency case. (Id. at p. 1296.)
In contrast to J.S., the exit orders made when Katherine's dependency case was dismissed are not a "direct result" of a prior allegedly erroneous juvenile court order. The validity of the exit orders does not depend on the April 2019 interim review order, as Maria appears to contend. More importantly, the judgment and exit orders in this case are not adverse to Maria because they afford her the relief that she sought at the April 2019 review hearing. There is no other effective relief available on appeal.
DISPOSITION
These consolidated appeals are dismissed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.